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Dretagitagi v State [2016] FJMC 221; Criminal Case 1872.2016 (4 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

CRIMINAL CASE NO: 1872/2016

BETWEEN : JOSUA DRETAGITAGI

APPPLICANT

AND : THE STATE

RESPONDENT

For the Applicant:Ms.Vulimaindavo(LAC)

For the Respondent: WPC Fisher

Date of Hearing:03^rd of November 2016

Date of Ruling : 04^thof November 2016

RULING ON BAIL

1. The applicant is charged with one count of Sexual Assault contrary to section 210(1) of the Crimes Decree No. 44 of 2009.
2. He was produced first time to this court on yesterday and elected this court. Full disclosures were also served and he has elected the legal aid to represent him.
3. In the meantime the legal aid counsel who was appearing as duty solicitor has made an oral bail application, seeking bail for his client.
4. The respondent is objecting for bail on the grounds that this is aserious offence and based on the interference of the witnesses.
5. Having considered the respective submissions of the parties now I proceed to pronounce my ruling in this case.
6. Section 13(1) (h) of the 2013 Constitution states that a person who is arrested or detained has right to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require.
7. Therefore the applicant has the right to be granted bail unless the court is satisfied for the interest of the justice he needs to be detained.
   8. The substantive law about bail is in the Bail Act (“Act”) and Section 3(3) of that provides that here is presumption of granting bail to an accused and the person who is opposing the bail has to rebut that.
9. The primary consideration in granting bail in a criminal case is the accused person appearing in the Court to answer the charge(section 17(2) of the Act )
10. Section 19(1) of the Act outlines the reasons for refusing bail and they are as follows:-
    1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
    2. The interest of the accused person will not be served through the granting of bail; or
    100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
11. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that

"All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".

12. In this case the prosecution is objecting to the bail on the basis that this is aserious offence and interference of the witnesses.
13. But just because the charge is serious alone is not a sufficient to deny bail to the applicant. Article 14(2) (a) of the 2013 Constitution states that every person charged with an offence has the right to be presumed innocent until proven guilty.
14. Hence without any other grounds based on this alone, I do not think the liberty of the applicant should be deprived.
15. But the victim in this case is 11 year old girl and even though they are not related the parties are living in same settlement. Therefore there is a possibility of interfering with the victim.
16. To displace that fear, the counsel for the applicant submitted that his client is prepared to change his residence and stay in another place.
17. Even though it may seems to have solve this issue there is another ground that has to be addressed by this court. It was submitted by the respondent that the second prosecution witness is the daughter of the applicant. Even if the applicant changes his residence I find there is real danger of his interfering with this second witness and strict bail conditions are not sufficient to rectify that.
18. Hence based on the public interest and the protection of the community, I find the bail should not be granted to the applicant in this case.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate